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State v Vibote [2012] FJHC 896; HAC81.2011 (15 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 81 OF 2011

STATE

-v-

LAISENIA KATONAWALE VIBOTE

Before: Priyantha Nawana J

Ms L. Vateitei State Counsel for prosecution
Mr E Maopa for defence

ORDER

1. The learned state counsel moves to produce a Medical Officer's Report dated 09 March 2011 at the close of the evidence of Dr. Ms Salman Hanifa, who claims to have examined the complainant-victim namely SP.
   
2. Mr Maopa, learned counsel appearing for the accused, objects to the production and marking of the document on the basis that it was not a document that came from the doctor's custody.
   
3. It was observed that Dr. Ms Hanifa, when she turned up at the witness box to give evidence, did not have contemporaneous notes or official records in her possession in relation to the medical examination of the complainant-victim.
   
4. Instead, the document was tendered to the witness from the custody of the learned state counsel stating that she had taken custody of the document from the police investigators.
   
5. When the victim-complainant SP gave evidence on her medical examination on 09 March 2011, she did not refer to her being examined by Dr. Ms Hanifa on that date; nor, did she identify a Medical Examination Form, as being a document on which the notes of the doctor were recorded at her examination.
   
6. A medical doctor or an official witness should give evidence with reference to the contemporaneous notes made by him or her at the time of examination or on the official records maintained at the relevant office.
   
7. It is an unsatisfactory and impermissible practice for doctors to come to court empty-handed without having any contemporaneous or official records for the court and counsel to be aided on their evidence. Having such records is the convenient and the most acceptable way of presenting evidence of an expert witness such as a medical doctor or an official witness.
   
8. In an exceptional situation, a medical doctor or an official witness, not having the custody of the contemporaneous or official records, could give evidence on the basis of some secondary evidence provided that the chain of custody of the particular document is well established in court.
   
9. In this case, the document that was relied on as the medical report upon which doctors findings were said to have been recorded could not be related to the complainant-victim SP in the absence of any evidence emanating from the complainant-victim to that effect. Therefore, there is no nexus at all to establish that, what was relied on by the prosecution, was in fact the document in which medical findings were recorded by the doctor at the time of the examination of the complainant-victim.
   
10. The prosecution in this case has failed in both alternate procedures to produce the document. In the circumstances, I uphold the objection raised by the learned counsel for accused and disallow the documents being tendered in evidence.
    

Priyantha Nāwāna
Judge
15 February 2011